CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 51/23
In the matter between:
SCALABRINI CENTRE OF CAPE TOWN First Applicant
TRUSTEES OF THE SCALABRINI CENTRE
OF CAPE TOWN Second Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR-GENERAL, DEPARTMENT
OF HOME AFFAIRS Second Respondent
CHAIRPERSON OF THE STANDING
COMMITTEE FOR REFUGEE AFFAIRS Third Respondent
and
CONSORTIUM FOR REFUGEES AND
MIGRANTS IN SOUTH AFRICA Amicus Curiae
Neutral citation: Scalabrini Centre of Cape Town and Another v The Minister of
Home Affairs and Others [2023] ZACC 45
Coram: Zondo CJ, Maya DCJ, Kollapen J, Mathopo J, Mhlantla J,
Rogers J, Schippers AJ, Theron J, Tshiqi J and Van Zyl AJ
Judgments: Schippers AJ (unanimous)
Heard on: 24 August 2023
Decided on: 12 December 2023
Summary: Refugees Act 30 of 1998 — constitutionality of subsections 22(12)
and 22(13) — provisions are unconstitutional
Failure to renew visa — resulting in deemed abandonment of
asylum application — violation of principle of non-refoulement —
infringement of right to dignity, right to just administrative action
and children’s rights — provisions arbitrary and irrational
ORDER
On application for confirmation of an order of constitutional invalidity granted by the
Western Cape High Court, Cape Town (Goliath DJP), on 13 February 2023, the
following order is made:
1. The declaration of constitutional invalidity of subsections 22(12) and
22(13) of the Refugees Act 130 of 1998 (Refugees Act) in paragraph (a)
of the High Court’s order, is confirmed.
2. The declaration of invalidity is retrospective to 1 January 2020, the date
on which subsections 22(12) and 22(13) of the Refugees Act came into
operation.
3. Paragraph (b) of the High Court’s order is set aside.
4. The first respondent is ordered to pay the applicants’ costs, including the
costs of two counsel.
SCHIPPERS AJ
1
JUDGMENT
SCHIPPERS AJ (Zondo CJ, Maya DCJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J,
Theron J, Tshiqi J and Van Zyl AJ concurring):
Introduction
This is an application in terms of section 167(5) 1 read with section 172(2)(a) of
the Constitution, 2 to confirm an order of constitutional invalidity made by the
Western Cape Division of the High Court, Cape Town (High Court). 3 In terms of
that order, the High Court declared subsections 22(12) and 22(13)
(impugned subsections) of the Refugees Act4 (Refugees Act), which came into force on
1 January 2020, inconsistent with the Constitution and invalid. In sum, these provisions
state that asylum seekers who fail to personally renew their asylum seeker visas issued
under section 22 of the Refugees Act within one month of their visa’s date of expiry,5
must be regarded as having “abandoned” their applications for asylum. They may not
re-apply for asylum and must be dealt with as illegal foreigners in terms of section 32
of the Immigration Act6 (Immigration Act).7
1 Section 167(5) of the Constitution provides:
“The Constitutional Court makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is constitutional, and must confirm any order of invalidity made
by the Supreme Court of Appeal, the High Court of South Africa, o r a court of similar status,
before that order has any force.”
2 In terms of s ection 172(2)(a), “an order of constitutional invalidity has no force unless it is confirmed by the
Constitutional Court.”
3 Scalabrini Centre of Cape Town v Minister of Home Affairs [2023] ZAWCHC 28; 2023 (4) SA 249 (WCC).
4 130 of 1998.
5 In terms of section 22, an asylum seeker whose application for asylum has not been adjudicated, is entitled to be
issued with an asylum seeker visa allowing the applicant to temporarily sojourn in the Republic. The visa may be
extended from time to time.
6 13 of 2002.
7 In terms of section 32 of the Immigration Act any illegal foreigner must be deported.
SCHIPPERS AJ
2
The first applicant, Scalabrini Centre of Cape Town, is a trust whose
main function is to assist migrant communities and displaced people, including
asylum seekers and refugees. The first applicant’s trustees are collectively cited as the
second applicant.
The first respondent is the Minister of Home Affairs (Minister), the member of
the Executive responsible for the administration of the Refugees Act. The second
respondent, the Director-General of the Department of Home Affairs (Department), is
the functionary responsible for running the Department. The third respondent is the
Chairperson of the Standing Committee for Refugee Affairs (Standing Committee).
The Standing Committee is required to endorse in its records the deemed abandonment
of an application for asylum in terms of the impugned subsections when asylum seekers
fail to report to a refugee reception office to renew their visas.
The Consortium of Refugees and Migrants in South Africa ( CoRMSA),
a non-profit organisation whose objects include the advancement of the rights of asylum
seekers, refugees and migrants, was admitted as an amicus curiae in these proceedings.
CoRMSA consists of 26 member organisations. The first applicant is a member
of CoRMSA.
Litigation history
In March 2020, the applicants launched a two-part application in the High Court.
In Part A, they sought an interdict restraining the respondents from implementing the
impugned subsections and regulation 9 and Form 3 (impugned regulations) of the
Refugee Regulations (Regulations), 8 which gave effect to the impugned subsections, 9
pending final determi nation of the relief sought in P art B of the notice of motion.
On 30 November 2020, the High Court granted the interdict sought in Part A. In Part B,
the applicants sought a declaratory order that the impugned subsections and the
8 The regulations were published under GNR 1707 in Government Gazette 42932 dated 27 December 2019 and
came into force on 1 January 2020.
9 Regulation 9 is quoted in para [26]of this judgment.
SCHIPPERS AJ
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Regulations are inconsistent with the Constitution and invalid; and an order reviewing
and setting aside the Regulations as unlawful and invalid.
In their attack on the impugned subsections and regulations, the applicants
alleged that the respondents created a system whereby asylum seekers who failed to
renew their visas within one month of the date of expiry were deemed to have
abandoned their applications for asylum, unless they could satisfy the
Standing Committee that there were compelling reasons for their failure to renew their
visas timeously. These visas are valid for a maximum period of six months and entitle
asylum seekers to temporarily sojourn, and to work or study in the Republic, pending
the determination of their application for asylum. In practice, visas are extended
multiple times before an asylum application is decided, which on average takes
five years.
This system, the applicants contended, is inconsistent with international law,
the Constitution, and the objects of the Refugees Act. It violates the principle of
non-refoulement (non-return) enshrined in the Act, namely that “one fleeing persecution
or threats to ‘his or her life, physical safety or freedom’ should not be made to return to
the country inflicting it ”.10 And this, merely because asylum seekers failed to meet a
procedural requirement. Even if the failure was the asylum seeker’s fault, such harmful
and inhumane co nsequences could not be justified under the Constitution. The
applicants also contended that the impugned subsections are irrational and arbitrary,
and therefore unconstitutional. They served no legitimate government purpose in that
they disqualified asylum seekers from the very system designed to protect them.
The applicants emphasised the grave consequences that the deemed
abandonment of asylum applications held for asylum seekers: their visas would not be
renewed; they would be barred from re-applying for asylum and face deportation under
10 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC) at para 25.
SCHIPPERS AJ
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the Immigration Act. These visas are critical for asylum seekers to temporarily stay in
South Africa and to protect them against arrest, detention and deportation.
In the High Court, the respondents opposed the relief sought by the applicants.
They denied that the impugned subsections violate the principle of non-refoulement and
alleged that they were justifiable under section 36 of the Constitution. The grounds of
justification were these. The administration of visas and specifically, expired visas,
places a huge burden on the Department’s officials, because a substantial number of
applicants are not genuine asylum seekers and know that their applications for asylum
will be rejected. As a result, the Department has some 737 315 inactive
visa applications under section 22 of the Refugees Act. These inactive cases
disproportionately exceed the number of active cases, created a massive backlog and
resulted in delays in finalising asylum applications.
This backlog, according to the Auditor General, would take about 68 years to
clear – excluding any new applications for asylum. This is hardly surprising. As this
Court said in Ruta:
“South Africa is amongst the world’s countries most burdened by asylum seekers and
refugees. That is part of our African history, and it is part of our African present. It is
clear from cases this court has heard in the last decade that the Department is overladen
and overburdened, as indeed is the country itself. South Africa is also a much-desired
destination. As the High Court noted in Kumah, the system is open to abuse, with the
ever-present risk of adverse public sentiment.”11
The respondents contended that the penalties for contraventions of visa
conditions in section 37 of the Refugees Act “are not as effective to deter the unlawful
and recalcitrant conduct of asylum seekers”. In most cases, asylum seekers pay an
admission of guilt fine for a breach of visa conditions and disappear into society until
their next run-in with law enforcement. In summary, the impugned subsections were
11 Id at para 58.
SCHIPPERS AJ
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implemented to reduce the backlog of inactive cases and ensure that asylum seekers
pursue their applications to completion.
The High Court’s judgment
At the inception of the hearing i n April 2022, the High Court refused an
application by the respondents to postpone the matter for a period of 18 to 24 months.
The reason for the postponement was that the Minister wished to approach Parliament
to initiate legislation to “do away with the abandonment provisions”, in light of the
judgment in Abore. 12 In that case, this Court affirmed that the principle of
non-refoulement applies as long as a claim for refugee status has not been finally
rejected after a proper procedure,13 which makes it clear that an application for asylum
cannot be regarded as having been abandoned for the failure to renew a visa .
Despite this, the respondents’ counsel stated in the High Court (and this Court) that the
Minister did not concede that the impugned subsections are unconstitutional.
The High Court found that the impugned subsections constitute a violation of the
principle of non-refoulement. These provisions permit the return of asylum seekers to
the countries from which they fled, where they may face torture or death, simply
because they are late in renewing a visa. The impugned subsections also have an
adverse impact on the rights of children, and cannot be cured by a bureaucratic review
by the Standing Committee as to why asylum seekers failed to renew their visas.
The purpose of the impugned subsections, according to the Department, is to motivate
asylum seekers to attend refugee reception offices more regularly so as to reduce the
backlog of asylum applications. This, the High Court said, is a limitation of the rights
to dignity, life and the rights of children , which is not justified under section 36 of the
Constitution. The impugned subsections fail to treat asylum seekers as presumptive
refugees. They are irrational and their impact is indiscriminate.
12 Abore v Minister of Home Affairs [2021] ZACC 50; 2022 (2) SA 321 (CC); 2022 (4) BCLR 387 (CC).
13 Id at para 42.
SCHIPPERS AJ
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The High Court also found that the impugned subsections are arbitrary. Asylum
seekers would be deported based solely on the failure to renew their visas, not on the
merits of their claims for asylum. That failure is often due to extraneous factors such
as the location of a refugee recep tion office, the length of queues at such office, or the
workload of departmental officials on the day. Asylum seekers have no control over
these factors. Consequently, the Court declared the impugned subsections and the
Regulations inconsistent with the Constitution and invalid. It also issued an order
declaring that the State is obliged to enact legislation “to ameliorate and amend” the
unconstitutionality of the impugned subsections. The respondents were ordered to pay
the applicants’ costs.
Submissions in this Court
The applicants
The applicants contend that asylum seekers who take more than a month to renew
their visa, and who cannot provide reasons to the satisfaction of the Standing Committee
as to the cause of the delay, are prohibited from pursuing their asylum application,
deprived of their visa, treated as illegal foreigners and ultimately deported. No matter
how broadly one construes the Standing Committee’s discretion to reverse the deemed
abandonment of an asylum application, it is not an assessment of an asylum claim.
Further, nowhere in this process is there any consideration of an asylum seeker’s
entitlement to non-refoulement or the potential persecution that may await them in their
country of origin. This is not even a factor to be considered by the Standing Committee
when exercising its discretion.
The impugned subsections thus create a different and distinct system in which
the right of asylum seekers is not dependent on the merits of their claim to asylum, or
the fate which awaits them in their country of origin, but on their ability to comply with
a bureaucratic hurdle – the timeous renewal of a visa. The principle of non-refoulement
is thus directly violated.
SCHIPPERS AJ
7
The violation of this principle, the applicants contend, results in the infringement
of fundamental rights in the Bill of Rights, namely the rights to equality, human dignity,
freedom and security of the person, and indeed life. This runs against the raison d’être
of the global refugee system: to protect the human rights of asylum seekers and
refugees.
The respondents
In their answering papers the respondents do not dispute that the impugned
subsections limit constitutional rights. Their initial defence to that limitation was that
it is reasonable and justifiable under section 36 of the Constitution.
The respondents however abandoned that defence in this Court, in accordance
with what they term “a revised approach with reference to Abore and Ruta”. They now
accept – as they must – this Court’s holding in Ruta, affirmed in Abore:
“Until the right to seek asylum is afforded and a proper determination procedure is
engaged and completed, the Constitution requires that the principle of non-refoulement
as articulated in s ection 2 of the Refugees A ct must prevail. The ‘shield of
non-refoulement’ may be lifted only after a proper determination has been
completed.”14
What is more, the respondents concede that, in terms of the Refugees Act,
South Africa is obliged to receive refugees in accordance with
international law standards, and that the principle of non-refoulement is enshrined in the
Act. Despite this concession, this Court is obliged to determine the constitutionality of
the impugned subsections. As was stated in Phillips:15
“[A] finding of constitutional invalidity by a High Court does not relieve this Court of
the duty to evaluate the provision of a provincial Act or Act of Parliament in the light
of the Constitution. A thorough investigation of the constitutional status of a legislative
14 Ruta above n 10 at para 54; Abore above n 12 at para 40.
15 Phillips v Director of Public Prosecutions [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC).
SCHIPPERS AJ
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provision is obligatory in confirmation proceedings. This is so even if the proceedings
are not opposed, or even if there is an outright concession that the section under attack
is invalid.”16
The amicus curiae
The amicus curiae, CoRMSA, in its submissions, addresses four issues. These
are t he rights- limiting impact of the impugned subsections as demonstrated by the
experiences of individual asylum seekers; the limitation of children’s rights; the lack of
justification for these limitations; and the availability of less restrictive means to achieve
the purpose ostensibly served by the impugned subsections.
Are the impugned subsections constitutional?
The correct approach to the constitutionality of the impugned subsections is this:
“[L]egislation must be construed consistently with the Constitution and thus, where
possible, interpreted so as to exclude a construction that would be inconsistent with
judicial independence. If held to be unconstitutional, the appropriate remedy ought, if
possible, to be in the form of a notional or actual severance, or reading in, so as to bring
the law within acceptable constitutional standards. Only if this is not possible, must a
declaration of complete invalidity of the section or sub-section be made.”
17
The starting point is section 22 of the Refugees Act. In relevant part, it provides:
“(1) An asylum seeker whose application in terms of section 21(1) has not been
adjudicated, is entitled to be issued with an asylum seeker visa, in the
prescribed form, allowing the applicant to sojourn in the Republic temporarily,
subject to such conditions as may be imposed, which are not in conflict with
the Constitution or international law.
. . .
16 Id at para 8.
17 S v Van Rooyen (General Council of the Bar of South Africa Intervening) [2002] ZACC 8;
2002 (5) SA 246 (CC); 2002 (8) BCLR 810 (CC) at para 88.
SCHIPPERS AJ
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(4) The visa referred to in subsection (1) may, pending the decision on the
application in terms of section 21, from time to time be extended for such
period as may be required.”
The impugned subsections are contained in subsections (12) and (13), which read
as follows:
“(12) The application for asylum of any person who has been issued with a visa
contemplated in subsection (1) must be considered to be abandoned and must
be endorsed to this effect by the Standing Committee on the basis of the
documentation at its disposal if such asylum seeker fails to present himself or
herself for renewal of the visa after a period of one month from the date of
expiry of the visa, unless the asylum seeker provides, to the satisfaction of the
Standing Committee, reasons that he or she was unable to present himself or
herself, as required, due to hospitalisation or any other form of
institutionalisation or any other compelling reason.
(13) An asylum seeker whose application is considered to be abandoned in
accordance with subsection (12) may not re-apply for asylum and must be dealt
with as an illegal foreigner in terms of section 32 of the Immigration Act.”
Section 32 of the Immigration Act provides:
“(1) Any illegal foreigner shall depart,
18 unless authorised by the Director-General
in the prescribed manner to remain in the Republic pending his or her
application for a status.
(2) Any illegal foreigner shall be deported.”
The impugned subsections were implemented in terms of regulation 9
of the Regulations. As already stated, the High Court made an order declaring
regulation 9 unconstitutional. The respondents did not apply for leave to appeal
18 The expression “depart or departure” is defined in section 1 of the Immigration Act as meaning “exiting the
Republic from a port of entry to another country in compliance with this Act”.
SCHIPPERS AJ
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that order. This Court is not required to confirm the order striking down regulation 9.19
Since the impugned subsections were struck down, regulation 9 could hardly stand. It
provided:
“(1) The endorsement by the Standing Committee of an application as an
abandoned application as contemplated in section 22(12) of the Act must be
made on Form 3 contained in the Annexure.
(2) The Refugee Reception Office Manager shall refer or cause an abandoned
application to be referred following an endorsement by the
Standing Committee as contemplated in subregulation (1), to an immigration
officer to deal with such a person as contemplated in section 22(13) of the Act.
(3) Compelling reasons as contemplated in section 22(12) of the Act shall relate
to—
(a) entry into a Witness Protection Programme;
(b) quarantine;
(c) arrest without bail; or
(d) any other similar compelling reasons, and must be supported by
documentary evidence.”
The impugned subsections have the following effects:
(a) An asylum seeker who fails to renew his or her visa within one month of its
expiry is automatically deemed to have “abandoned” his or her application
for asylum, regardless of its merits. The visa will not be renewed and the
asylum seeker must be dealt with as an “illegal foreigner”, defined in
section 1 of the Immigration Act as a person who is in the Republic in
contravention of that Act.
(b) A “Notification of Abandoned Application ”20 is then referred to the
Standing Committee for its endorsement in the Department’s records.
Asylum seekers are entitled to furnish reasons “to the satisfaction of the
Standing Committee” why they were unable to renew their visas in person
19 Minister of Home Affairs v Liebenberg [2001] ZACC 3; 2002 (1) SA 33 (CC) ; 2001 (11) BCLR 1168 (CC) at
para 13; Mulowayi v Minister of Home Affairs [2019] ZACC 1; 2019 (4) BCLR 496 (CC) at paras 27-9.
20 Form 3 of the impugned regulations.
SCHIPPERS AJ
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(at a refugee reception office). This, it must be stressed, is not an assessment
of the application for asylum. Section 22(12) is silent on the question
whether the asylum seeker may be issued with a new visa, pending the
Standing Committee’s decision. The respondents have not explained the
status of an asylum seeker in this situation.
(c) If the Standing Committee endorses the deemed abandonment of the asylum
application, the asylum seeker is precluded from re-applying for asylum and
must be dealt with as an illegal foreigner. This status carries the risk of
arrest, detention and deportation. 21 In addition, the Immigration Act
prohibits the employment, education, harbouring, or the aiding and abetting
of illegal foreigners.22 Unless the Department authorises an illegal foreigner
to remain in the Republic pending their application for a status, they must be
deported.23
(d) Nowhere in the deemed abandonment of the asylum application, the
endorsement of that abandonment by the Standing Committee, or its
assessment of the reasons for the failure to renew the visa, is there any
consideration of the principle of non-refoulement. The potential persecution
that genuine asylum seekers may face in their country of origin is simply
ignored.
Violation of the principle of non-refoulement
Refugees are by definition persons in flight from persecution or threats to their
life, physical safety or freedom and other serious human rights abuses, and should not
21 Section 34(1) of the Immigration Act provides:
“Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him
or her to be arrested, and shall, irrespective of whether such foreigner is arrested, deport him or
her or cause him or her to be deported and may, pending his or her deportation, detain him or
her or cause him or her to be detained in a manner and at the place under the control or
administration of the Department.”
22 Section 38 of the Immigration Act provides that no person shall employ an illegal foreigner.
Section 39 proscribes training or instruction to an illegal foreigner by any learning institution. Section 40 prohibits
the harbouring of an illegal foreigner. Section 42 states that no person shall aid or abet an illegal foreigner, save
for providing necessary humanitarian assistance.
23 Section 32(1) of the Immigration Act.
SCHIPPERS AJ
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be forced to return to the country inflicting these harms. 24 They are an “especially
vulnerable group” in our society, and their plight calls for compassion.25 The impugned
subsections are directly at odds with this, and the principle of non-refoulement.
In terms of section 1A , the Refugees Act must be interpreted and applied in a
manner that is consistent with inter alia the 1951 United Nations Convention Relating
to the Status of Refugees (1951 Geneva Convention); the 1967 United Nations Protocol
Relating to the Status of Refugees (1967 Protocol); and the 1969
Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa (1969 OAU Convention), all of which embody the principle of
non-refoulement. This principle is a cornerstone of the international law regime
governing refugees.
Thus, article 33(1) of the 1951 Geneva Convention and its 1967 Protocol
(both ratified by South Africa) provide that no contracting party shall expel or return
refugees to territories where their lives or freedom would be threatened on account of
their race, religion, nationality, membership of a particular social group or
political opinion. The 1951 Geneva Convention is both a status- and rights- based
instrument and is underpinned by several fundamental principles, most notably
non-discrimination,
26 non-penalisation,27 and non-refoulement.28 The principle of
non-refoulement is so fundamental that no reservations or derogations
may be made to it. Likewise, article 2(3) of the 1969 OAU Convention, which this
country has also ratified, states that no person shall be returned or expelled to a territory
where their life, physical integrity or liberty would be threatened on account of a
24 Ruta above n 10 at para 24.
25 Union of Refugee Women v Director: Private Security Industry Regulatory Authority [2006] ZACC 23; 2007
(4) SA 395 (CC); 2007 (4) BCLR 339 (CC) at paras 28-9; Ahmed v Minister of Home Affairs [2018] ZACC 39;
2019 (1) SA 1 (CC); 2018 (12) BCLR 1451 (CC) at para 22; Ruta above n 10 at para 48.
26 Article 3 of the 1951 United Nations Convention Relating to the Status of Refugees .
27 Id at Article 31(1).
28 Id at Article 33(1).
SCHIPPERS AJ
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well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion.
The principle of non-refoulment accordingly forms part of customary
international law and international human rights law. 29 Indeed, in their
answering affidavit in the High Court, the respondents concede that South Africa has
“assumed certain obligations to receive and treat in its territory refugees in accordance
with the standards and principles established in international law”. And the principle
applies to asylum seekers or de facto refugees (those who have not yet had their refugee
status confirmed under domestic law), as well as de jure refugees (those whose status
has been determined as refugees).
30
The principle of non-refoulement is enshrined in section 2 of the Act. It provides:
“Notwithstanding any provision of this Act or any other law to the contrary, no person
may be refused entry into the Republic, expelled, extradited or returned to any other
country or be subject to any similar measure, if as a result of such refusal, expul sion,
extradition, return or other measure, such person is compelled to return to or remain in
a country where—
(a) he or she may be subjected to persecution on account of his or her race,
religion, nationality, political opinion or membership of a particular social
group; or
(b) his or her life, physical safety or freedom would be threatened on account of
external aggression, occupation, foreign domination or other events seriously
disturbing or disrupting public order in either part or the whole of that country.”
The impugned subsections fly in the face of the prohibition contained in
section 2 of the Act. The effect of section 2 is to “permit any person to enter and to
remain in this country for the purpose of seeking asylum from persecution” on account
29 Ruta above n 10 at paras 26-7.
30 Id at para 27.
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of the factors listed in subsections (a) and (b). 31 It is then that the obligation not to
return (refouler) an asylum seeker arises. Recently in G v G,32 Lord Stephens put the
position as follows:
“Under the 1951 Geneva Convention recognition that an individual is a refugee is a
declaratory act. The obligation not to refoule an individual arises by virtue of the fact
that their circumstances meet the definition of ‘refugee’, not by reason of the
recognition by a Contracting State that the definition is met. For this reason a refugee
is protected from refoulement from the moment they enter the territory of a
Contracting State whilst the S tate considers whether they should be granted refugee
status.”33
The impugned subsections however disregard the protection of asylum seekers
from refoulement: those who do not renew their visas timeously are deemed to have
abandoned their asylum applications, and they may be expelled or returned to the
countries from which they fled. As stated in the applicants’ submissions in this Court,
in those countries they may face torture, imprisonment, sexual violence and other forms
of persecution, even death. And this, without any consideration of the merits of their
claim for asylum.
As this Court stated in Ruta, “all asylum seekers are protected by the principle
of non-refoulement, and the protection applies as long as the claim to refugee status has
not been finally rejected after a proper procedure”. 34 This procedure necessarily
requires a determination of the merits of the asylum claim. The impugned subsections
impose a double penalty: they not only exclude determination of the merits, but also
prohibit any re-application for asylum.
31 Minister of Home Affairs v Watchenuka [2003] ZASCA 142; [2004] 1 All SA 21 (SCA) at para 2.
32 G v G [2021] UKSC 9 at para 81.
33 Id.
34 Ruta above n 10 at para 29.
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Infringement of fundamental rights
The impugned subsections also infringe the right to dignity. 35 The value of
dignity in our constitutional framework is beyond doubt. The Constitution asserts
dignity “to invest in our democracy respect for the intrinsic worth of all human beings”.
Human dignity “informs constitutional adjudication and inte rpretation at a range of
levels”.36
Applied to the present case, asylum seekers are issued with visas that are
essential for a life of dignity, pending the determination of their asylum applications.
As this Court stated in Saidi:
“Temporary permits [visas] … are critical for asylum seekers. They do not only afford
asylum seekers the right to sojourn in the Republic lawfully and protect them from
deportation but also entitle them to seek employment and access educational and health
care facilities lawfully.”
37
For an asylum seeker, a life of dignity entails:
“[E]mployment opportunities; having access to health, educational and other facilities;
being protected from deportation and thus from a possible violation of her or his right
to freedom and security of the person; and communing in ordinary human intercourse
without undue state interference.”
38
CoRMSA presented evidence that the impugned subsections had been applied to
394 asylum seekers whose applications for asylum were deemed to have been
abandoned. For nearly two years some of them were denied the opportunity of renewing
their visas. Consequently, they were unable to find work in the formal sector, could not
35 Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity
respected and protected.”
36 Dawood v Minister of Home Affairs; Shalabi v Minister of Home Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8; 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at para 35.
37 Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) at para 13.
38 Id at para 18.
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gain access to basic services such as healthcare and banking, and faced the risk of arrest,
detention and deportation. Many other asylum seekers may have suffered a similar fate,
had the High Court not granted the interdict restraining the implementation of the
impugned subsections.
The deemed abandonment of the asylum application under the
impugned subsections also cuts across other fundamental rights. The right to just
administrative action is directly infringed, 39 since the asylum application is not
considered, let alone determined. Worse, the asylum seeker must then be treated as an
illegal foreigner, subject to arrest, detention and deportation. The rights to personal
liberty,40 and indeed life itself,41 are then threatened. All this, simply because a visa has
not been renewed.
Aside from this, the impugned subsections also unjustifiably limit the rights of
children, as submitted by the amicus. 42 This Court has emphasised that “[t]he
recognition of the innate vulnerability of children is rooted in our Constitution, and
protecting children forms an integral part of ensuring the paramountcy of their best
interests.”
43 It cannot be in the best interests of children to deem their applications as
having been abandoned, with all its consequences, due to bureaucratic circumstances
beyond their control.
39 Section 33 of the Constitution states that everyone has the right to just administrative action that is lawful,
reasonable and procedurally fair. These rights have been given effect to in the Promotion of Administrative Justice
Act 3 of 2000.
40 Section 12(1)(a) of the Constitution provides inter alia that everyone has the right to freedom and security of
the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.
41 Section 11 of the Constitution provides that “[e]veryone has the right to life.”
42 Section 28(1)(b), (c) and (d) of the Constitution provides that every child has the right to family or parental
care; to basic nutrition, shelter, basic healthcare services and social services; and to be protected from
maltreatment, neglect, abuse or degradation. Section 28(2) provides that a child’s best interests are of paramount
importance in every matter concerning the child.
43 Centre for Child Law v Media 24 Ltd [2019] ZACC 46; 2020 (1) SACR 469 (CC); 2020 (3) BCLR 245 (CC)
at para 64.
SCHIPPERS AJ
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Children’s applications for asylum are generally tied to those of their parents.
The deemed abandonment of parents’ asylum applications has had drastic consequences
on their children. CoRMSA adduced evidence that the children of an asylum seeker
whose application was deemed to be abandoned coul d not attend school for the entire
2020 academic year because they had no visas. In another case, an asylum seeker’s son
could not register for matric. Like their parents, without visas, children also face the
risk of arrest, detention and deportation. As this Court said in Centre for Child Law,44
it is unjust to penalise children for matters over which they have no power or influence.
Moreover, the deemed abandonment of an asylum application disregards the
constitutional recognition of children as individuals, with distinctive personalities and
their own dignity, who are entitled to be heard in every matter concerning them. 45
The impugned subsections operate automatically after 30 days, without regard to their
impact on affected children.
Irrationality and arbitrariness
The impugned subsections are irrational and arbitrary: they serve no legitimate
government purpose. In New National Party, 46 this Court held that the exercise of
legislative power (in that case the establishment of an electoral scheme) is subject to
two constitutional constraints:
“The first of the constitutional constraints placed upon Parliament is that there must be
a rational relationship between the scheme which it adopts and the achievement of a
legitimate governmental purpose. Parliament cannot act capriciously or arbitrarily .
The absence of a rational connection will result in the measure being unconstitutional.
An objector who challenges the electoral scheme on these grounds bears the onus of
establishing the absence of a legitimate government purpose, or the absence of a
rational relationship between the measure and that purpose.
44 Id at para 72.
45 AB v Pridwin Preparatory School [2020] ZACC 12; 2020 (5) SA 327 (CC) ; 2020 (9) BCLR 1029 (CC)
at para 234; S v M [2007] ZACC 18; 2008 (3) SA 232 (CC); 2007 (12) BCLR 1312 (CC) at para 18.
46 New National Party v Government of the Republic of South Africa [1999] ZACC 5; 1999 (3) SA 191 (CC);
1999 (5) BCLR 489 (CC).
SCHIPPERS AJ
18
A second constraint is that the electoral scheme must not infringe any of the
fundamental rights enshrined in chapter 2 of the Constitution. The onus is once again
on the party who alleges an infringement of the right to establish it.”
47
The threshold question in the rationality inquiry is whether the measure the
lawgiver has chosen is properly related to the public good it seeks to realise.48 There is
no rational connection between the impugned subsections and their alleged purposes.
The respondents asserted that these provisions were enacted to reduce the backlog of
asylum applications; to motivate asylum seekers to pursue their applications timeously;
to discourage unauthentic and deceptive applications for asylum; and to reduce the
heavy administrative burden on refugee and immigration officials, the Standing
Committee and the Refugee Appeal Board. As stated, the respondents also claimed that
the penalty provisions under section 37 of the Refugees Act could not on their own
motivate asylum seekers to pursue their applications.
The short answer to these assertions is that they cannot justify the automatic
abandonment of an asylum application, simply because of a failure to renew a visa.
As stated, the consequence of the impugned subsections is that the merits of a claim for
asylum are never considered, and the principle of non-refoulement is violated. In any
event, the respondents wrongly assume that most asylum seekers have no valid claims
to asylum and no interest in pursuing those claims. This assumption violates the core
principle of refugee law that asylum seekers must be treated as presumptive refugees
until the merits of their claim have been finally determined through a proper process. 49
Moreover, the visa protects asylum seekers against arrest and deportation, and allows
them to access employment, education and health services. Therefore, they have
sufficient motivation to seek renewal. Apart from this, the evidence shows that the
47 Id at paras 19-20.
48 Law Society of South Africa v Minister for Transport [2010] ZACC 25; 2011 (1) SA 400 (CC); 2011 (2) BCLR
150 (CC) at paras 32 and 35.
49 Ruta above n 10 at paras 26-7; Abore above n 12 at para 42; Ashebo v Minister of Home Affairs [2023] ZACC 16;
2023 (5) SA 382 (CC) at para 31.
SCHIPPERS AJ
19
non-renewal of visas – often the consequence of long queues, the financial burden of
getting to reception offices and taking time off from work to do so – has not caused the
backlog of asylum applications, nor imposed a significant burden on the Department.
Given that the impugned subsections are arbitrary and do not serve a legitimate
government purpose, that is the end of the rationality inquiry, and the provisions fall to
be struck down as constitutionally bad. 50 Consequently, a limitation analysis under
section 36 of the Constitution does not arise. So too, any consideration of CoRMSA’s
submission that there are less restrictive means to achieve the ostensible purpose of the
impugned subsections.
Conclusion
In short, the impugned subsections violate the principle of non-refoulement,
infringe the right to dignity, unjustifiably limit the rights of children and are irrational
and arbitrary. It follows that these provisions are unconstitutional and that the
High Court’s order to that effect must be confirmed.
Order
The High Court was correct in declaring that subsections 22(12) and (13) of the
Refugees Act are inconsistent with the Constitution and invalid, in paragraph (a)
of its order. However, paragraph (b) is inappropriate. It states:
“(b) It is declared that the State is obliged by section 7(2) of the Constitution to
respect, protect, promote and fulfil the rights in sections 9, 10, 28, and 34 of
the Constitution by preparing, initiating, introducing, enacting and bringing
into operation, d iligently and without delay as required by section 237
of the Constitution, legislation to ameliorate and amend part (a) of the order
above-mentioned.”
50 Law Society of South Africa above n 48 at para 35.
SCHIPPERS AJ
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Paragraph (b) of the order is unsustainable because it instructs Parliament to
prepare legislation to “ameliorate and amend part (a) of the order ”, purportedly “as
required by section 237 of the Constitution”, which provides that “[a]ll constitutional
obligations must be performed diligently and without delay”. As was held in
National Coalition,51 a court must keep in mind the principle of the
separation of powers and, flowing therefrom, the deference it owes to the Legislature in
devising a remedy for a breach of the Constitution in any particular case. What is more,
the applicants did not ask for any order in the terms of paragraph (b) in the High Court;
neither did they ask that paragraph (b) be confirmed by this Court.
The following order is made:
1. The declaration of constitutional invalidity of subsections 22(12) and
22(13) of the Refugees Act 130 of 1998 (Refugees Act) in paragraph (a)
of the order issued by the Western Cape Division of the High Court, Cape
Town (High Court), on 13 February 2023, is confirmed.
2. The declaration of invalidity is retrospective to 1 January 2020, the date
on which subsections 22(12) and 22(13) of the Refugees Act came into
operation.
3. Paragraph (b) of the High Court’s order is set aside.
4. The first respondent is ordered to pay the applicants’ costs, including the
costs of two counsel.
51 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17;
2000 (2) SA 1 (CC); 2000 (1) BCLR 39 (CC) at para 66.
21
For the Applicants:
For the Respondents:
For the Amicus Curiae:
D Simonsz and N Nyembe instructed by
Norton Rose Ful bright South Africa
Incorporated.
M Naidoo SC and M Mokhoaetsi,
instructed by the State Attorney,
Cape Town.
C McConnachie, T Pooe and
M Kritzinger instructed by Lawyers for
Human Rights.